Mather v. Willet Dairy

Jul 30: In the U.S. Court of Appeals, Second Circuit, Case Nos. 07-3454 & 07-3462. The case is appealed from a judgment of the U.S. District Court for the Northern District of New York granting summary judgment for Defendants-Appellees on all of Plaintiffs-Appellants’ claims in a suit alleging that Defendants-Appellees’ large dairy operation emitted hazardous pollutants in violation of the Clean Water Act (CWA).

The Appeals Court ruled that the Plaintiffs-Appellants, a group of neighbors, waived their claim as to any CWA violations before July 1999, that the CWA permit shield provision prohibited this action as to any claims between July 1999 and December 2006, and that Plaintiffs-Appellants’ Resource Conservation and Recovery Act (RCRA)claims were prohibited under that statute’s "non-duplication provisions." Additionally, the Appeals Court said, ". . .we join other circuits in concluding that Defendants-Appellees did not need a permit to construct a stock pond on land already in use for farming under 33 U.S.C. § 1344(f)(2). Accordingly, the judgment of the District Court granting summary judgment on all of Plaintiffs-Appellants’ claims is affirmed."

Plaintiffs had brought the citizen suit claiming that Willet Dairy violated the Clean Water Act by failing to manage its animal waste and silage leachate properly, and otherwise causing environmental and public health hazards. They charged that: (1) Willet Dairy operated without a permit prior to July 1999 in violation of the CWA, (2) Willet Dairy discharged pollutants into navigable waterways after July 1999 in violation of its permit and the CWA, (3) Willet Dairy’s operations violated the Resource Conservation and Recovery Act of 1976 (RCRA), and (4) Willet Dairy diverted Schaeffer Brook without a permit in violation of the CWA.

On the first charge, the Appeals Court said Appellants failed to raise this claim properly before the District Court, and therefore it was deemed it waived. Additionally, if Appellants had sufficiently argued the claim below, Willet Dairy’s failure to have a permit before July 1999 is a “wholly past violation,” which cannot be the subject of a CWA citizen suit, and the Dairy has had permit coverage under New York Department of Environmental Conservation’s general permit since July 1999.

On the second charge, the Appeals Court said the “permit shield,” embodied in 33 U.S.C. § 1342(k), protects a CWA permit holder from facing suits challenging the adequacy of its permit. The Appeals Court said, ". . .compliance with an authorized permit is deemed compliance with CWA, so as long as Willet Dairy was acting in accordance with its permit it could not be liable in a citizen suit for CWA violations.

On the third charge, the Appeals Court said, ". . . RCRA establishes a regulatory scheme for the treatment, disposal, and storage of solid and hazardous wastes. . . The RCRA also provides that '[n]othing in this chapter shall be construed to apply to . . . any activity or substance which is subject to the [CWA] . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of [the 10 CWA].' 42 U.S.C. § 6905(a). Appellants’ RCRA claims are based on the same activities and substances that the CWA covers.

On the last issue regarding the diversion of Schaeffer Brook to create a stock pond, which allegedly caused harm to ponds and streams on Appellants’ properties, the Appeals Court said, "This is a new issue for our Circuit and thus we write to clarify our position." The Appeals Court said in December 1999, Willet Dairy diverted the upstream reach of the Schaeffer Brook without contacting the Corps, however, when it sought a "jurisdictional determination" from the Corps on whether it needed a permit, the Corps said it did not have jurisdiction over the pond project because of the exception to Section 1344(a) that allows a party to proceed without a permit if diverting the navigable water is “for the purpose of construction or maintenance of farm or stock ponds. . . ”

However, the Appeals Court notes that there is an exception to this exemption, called the “recapture provision,” which requires a permit if the diversion project is for the purpose of bringing an area “into a use to which it was not previously subject.” Appellants contended that the diversion was for a "new" pond, and a "new" use, so the activity should fall within the "recapture provision." The Appeals Court said, "Other courts have, however, interpreted the recapture provision to mean that a party needs a permit only when it is starting a new farming operation, not when it is building a new pond to support an existing farming operation. . . We agree for substantially the reasons stated by these courts. Any other reading would make the statute incoherent. Given that Section 1344(f)(1)(C) provides a permit exemption for the construction of a stock pond, which is by definition new, that section would be rendered meaningless by an interpretation of the recapture provision that required permits for all new uses, including new ponds. Moreover, even if there was ambiguity over the scope of the recapture provision, we would give deference to the agency interpretation that the recapture provision did not apply in this instance."

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Norton Construction v. U.S. Army Corps

Jun 2: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-3826. The appeal involved plaintiff Norton Construction Company’s application for a permit to construct a new landfill in an area subject to defendant United States Army Corps of Engineers’ jurisdiction. The Corps refused to process the application, citing a Congressional appropriation act that the Corps construed as forbidding it from processing applications for new landfills in the area that it considered to be within the Muskingum Watershed. Norton unsuccessfully challenged the decision in district court. The district court ruled that the Corps reasonably interpreted the statute and that the law did not violate Norton’s constitutional rights. Norton appealed the decision and the Sixth Circuit affirmed the district court decision.

Norton applied for a Section 404 permit, but the Corps returned the application without acting upon it because Congress enacted a temporary appropriations rider, which in the opinion of the Corps, prohibited the Corps from processing its application. Subsequently, Congress passed and the President signed the Energy and Water Development Appropriations Act of 2006, Pub. L. No. 109-103, 119 Stat. 2247 (2005). Section 103 of the Act, enacted as a regular appropriations statute rather than as a temporary appropriations rider, prohibited the Corps from granting new landfill applications, "In order to protect and preserve the integrity of the water supply against further degradation," in the “Muskingum Watershed.”

The Appeals Court indicates that the case was made more difficult by its "ever-changing legal landscape." At first, by means of a temporary appropriations rider, Congress prohibited the processing of new landfill applications in the area of the Muskingum Watershed. Later, Congress reenacted this prohibition as part of a nonexpiring appropriations statute, thus prompting the current suit. Finally, while the present appeal was pending, Congress acted yet again by passing the Consolidated Appropriations Act of 2008. The Appeals Court explains that under different arguments it would still affirm the district court ruling and concludes "that declaring the case moot and again remanding for reconsideration in light of the latest statute would be a futile exercise and a needless waste of valuable judicial resources."

Sierra Forest Legacy v. Rey (U.S. Forest Service)

May 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16892. Sierra Forest Legacy (Sierra Forest) appeals the decision of the district court denying a preliminary injunction against the United States Forest Service (the USFS or the Forest Service) in a suit challenging its decision to permit logging in accordance with changes made in 2004 by the USFS in the relevant forest plan. Many other parties have intervened on each side. The Attorney General of California, Edmund Brown, Jr., filed an amicus brief in support of Sierra Forest. The Appeals Court held that the district court abused its discretion and reversed and remanded the case.

The Appeals Court says that the "USFS acknowledges that its reason for selling the forest trees to commercial loggers is to raise funds to carry on its fire prevention duties. Sierra Forest and the State of California seek to preserve the larger trees and so to preserve the habitat that supports various species. We need decide here a limited and narrow issue: Does the 2004 SEIS prepared by USFS regarding its plans to sell off the forest trees comply with the requirements of NEPA?"

In its conclusion, the Appeals Court says, "Postponement of the Forest Service plans may increase the danger posed by fires; but the Forest Service and Congress do not appear helpless to find the funds to decrease the dangers. The question we address here is whether USFS’s choice of funding for fire reduction -- rather than fire reduction itself -- outweighs California’s preservation interests. We conclude that it does not, given that 'special solicitude' should be afforded California’s stake in its natural resources and that the Forest Service did not consider alternatives to its choice of funding."

Greg Loarie, an attorney with Earthjustice representing the conservation groups said, "The Ninth Circuit understood that the old-growth logging at issue here may turn a profit, but will not make the Sierra any safer if there's a fire. We desperately need the Forest Service to turn its attention away from the big trees and back to Sierra communities."

Access the complete opinion (click here). Access a release from Earthjustice (click here).

State of Missouri v. U.S. Army Corps of Engineers

Feb 8: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-1149. The United States Army Corps of Engineers (Corps) manages the Missouri River Mainstem Reservoir System (the System) under the Flood Control Act of 1944. The System consists primarily of a series of dams and reservoirs on the upper River. The Corps’ governing operational document is the Missouri River Mainstem Reservoir Master Water Control Manual (the Master Manual), which has been revised five times since its initial adoption in 1960. The Corps also publishes specific operational details in an Annual Operating Plan.

In recent years, persistent drought conditions have challenged the Corps’ ability to perform its dominant Flood Control Act functions of flood control and maintaining downstream navigation while also continuing to benefit secondary uses such as irrigation, recreation, fish, and wildlife. Forced to make difficult choices, the Corps has faced repeated lawsuits by competing beneficial users of the River as controlled by the System. In South Dakota v. Ubbelhode, the Eighth Circuit reversed the grant of preliminary injunctions preventing the Corps from releasing drought-depleted waters from reservoir lakes in South Dakota and North Dakota in order to maintain downstream navigation.

Meanwhile, environmental groups sued, and the Judicial Panel on Multi-District Litigation consolidated all actions in the District of Minnesota. In March 2004, the Corps issued a revised Master Manual (the 2004 Master Manual) containing provisions prompted by a Biological Opinion issued by the U.S. Fish and Wildlife Service (FWS) under the Endangered Species Act. Competing users challenged the actions of both agencies on numerous grounds. In In re Operation of the Missouri River System Litigation, (2006) (hereinafter Mo. River), the Eighth Circuit affirmed the district court’s grant of summary judgment in favor of both agencies.

The Appeals Court explains, "In this action, a sequel to Mo. River, the State of Missouri claims that the Corps violated the National Environmental Policy Act (NEPA) by implementing March 2006 revisions to the 2004 Master Manual without preparing a supplemental environmental impact statement (SEIS). The district court granted the Corps’ motion for summary judgment. Missouri appeals. We conclude that the Corps’ actions were not arbitrary and capricious and therefore affirm."

In its final analysis the Appeals Court makes an important observation saying, "Finally, Missouri argues that the Corps violated NEPA when it failed to follow the EA with either an EIS or a FONSI [finding of no significant impact}. This is an unduly restricted view of the agency’s options for complying with NEPA’s procedural mandates. The Corps’ regulations provide that an EA is used 'for determining whether to prepare an EIS or a FONSI,' and '[a] FONSI shall be prepared for a proposed action . . . for which an EIS will not be prepared.' 33 C.F.R. §§ 230.10(a), 230.11. However, these provisions must be read in conjunction with CEQ’s implementing regulations, see 33 C.F.R. § 230.1, which sensibly provide that '[a]gencies may prepare an environmental assessment on any action at any time in order to assist agency planning and decisionmaking.' 40 C.F.R. § 1501.3(b). Neither the Corps’ nor CEQ’s regulations prescribe a specific process to determine whether to prepare an SEIS. Here, the Corps prepared an EA, not to help it decide whether to prepare an EIS, but rather to determine whether the change in agency action required an SEIS. As this case illustrates, it is reasonable to expect that the Corps will sometimes determine that a FONSI is not appropriate because the action being taken has a significant impact on the environment, but an SEIS is not required because the impact was sufficiently analyzed in an earlier FEIS. This approach is neither a misuse of the EA procedure nor a violation of NEPA."

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